Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and orders of the Superior Court of Los Angeles County No. BC390728. Michael L. Stern.
Dorsey & Whitney, Jessica Linehan and Joseph W. Hammell for Defendants and Appellants.
Lavely & Singer, Martin D. Singer, William Briggs II and Todd S. Eagan for Plaintiff and Respondent.
CHAVEZ, J.
Defendants and appellants Canon Business Solutions, Inc. (Solutions) and Canon U.S.A., Inc. (CUSA) appeal from the judgment entered in favor of plaintiff and respondent Gregg Levin (Levin) and from the order denying their motion for judgment notwithstanding the verdict (JNOV) after a jury returned a special verdict in favor of Levin on his claims for false imprisonment, invasion of privacy, and intentional infliction of emotional distress. The jury awarded damages in the amount of $214,470 against Solutions, CUSA, and Michael Cerame (Cerame), a private security consultant retained by defendants. The jury awarded Solutions damages in the amount of $1,840 on its cross-claims against Levin for breach of contract and violation of Labor Code section 2860. Solutions also appeals from the order denying its motion for a new trial on damages on its cross-claims for breach of contract, violation of Labor Code section 2860, and a new trial on its cross-claims for conversion, constructive fraud, and violation of Labor Code sections 2861 and 2863.
Solutions and CUSA are referred to collectively as defendants.
We affirm the judgment and the orders denying the motion for JNOV and the motion for a new trial.
FACTUAL BACKGROUND
Levin was employed by Solutions for 21 years as a field technician who serviced Canon copy machines. He spent most of his work days in the field and did not stop at the Solutions’ branch office in Calabasas on a regular basis. Accordingly, Levin, like other Solutions’ field technicians, was allowed to maintain an inventory of Canon parts in his car and in his home. From time to time, Canon customers would ask a field technician to remove boxes of unused toner from the customers’ premises, and the technician would store the unused toner in the technician’s vehicle or home before returning it to the Canon home office. Levin stored his inventory of Canon parts and excess toner in his garage, which was attached to his home.
Solutions tracked its technicians’ parts inventories through an automated database. Before March 17, 2008, Levin self-reported his inventory of parts to his manager, John Ketchum (Ketchum).
For the last eight years of his employment, Levin was responsible for servicing Canon copiers at Warner Brothers Studios, one of Canon’s largest Southern California customers. During this time, Levin earned multiple meritorious service awards. In January 2008, Levin’s superiors attempted to transfer him away from Warner Brothers and reassign him elsewhere. When a Warner Brothers executive who learned of the proposed transfer sought to intervene and keep Levin as Warner Brothers’ service technician, Levin’s managers initiated a disciplinary action against Levin.
In March 2008, Levin’s ex-wife, Katherine Levin, called John Focarino (Focarino), Solution’s senior director of services, and told him Levin had been stealing parts and supplies from Solutions and selling them for a profit to other customers. Focarino contacted Kevin Coleman (Coleman), the director of Solutions’ human resources department, and the two of them discussed the allegations with Focarino’s supervisor, Emily Reynolds, and with Canon’s national vice president of human resources.
Focarino received authority to work with an investigative audit team CUSA had sent to California for the purpose of reviewing Solutions’ automated inventory control system. Members of the CUSA audit team included Stephanie Weisberg (Weisberg), a CUSA vice president and the manager of CUSA’s internal audit department; a CUSA auditor named Robert Ryan (Ryan); and Cerame, a former police officer who worked as a private security consultant. Focarino knew Cerame because the two of them had worked together in January 2008 while investigating unrelated theft allegations against a former Solutions employee.
Focarino contacted Cerame and informed him of Katherine Levin’s theft allegations. Cerame met with Katherine Levin, who told Cerame she believed Levin had been stealing inventory from Solutions for more than 20 years. Cerame also interviewed an individual named Kirk Wood, whom Katherine Levin identified as someone to whom Levin had purportedly sold stolen Canon inventory.
Cerame reported the results of his investigation to Focarino and Coleman on the morning of March 17, 2008. Later that same morning, Cerame and Focarino met with Weisberg and the other members of the CUSA audit team. The CUSA audit team decided to conduct an unannounced audit of Levin’s parts inventory that day. The CUSA audit team members then discussed the parameters of the audit and advised Focarino as to how the audit would be conducted. They discussed taking steps to ensure that Levin was not left alone with the inventory at any time during the course of the audit and that he be transported in a company vehicle to the audit of the inventory stored at his home. At approximately 2:00 p.m., Ketchum called Levin and asked him to come to a meeting at Solutions’ Calabasas office. Ketchum had been instructed not to disclose to Levin the purpose of the meeting. When Levin arrived, Ketchum directed him to a conference room in which Cerame, Focarino, Ryan, and Weisberg were waiting.
Cerame introduced himself to Levin as a Canon internal auditor and informed Levin that the inventory in his car and home would be audited that day. Levin agreed, but explained that he had a doctor’s appointment at 5:30 p.m. Cerame assured him that keeping the appointment would not be a problem.
Focarino, Ketchum, Cerame, and Ryan then accompanied Levin to his car and retrieved the inventory Levin kept there. When Cerame told Levin that the audit team needed to retrieve the inventory stored at Levin’s home, Levin agreed and proceeded to walk back toward his own car. Cerame stopped Levin and said that he would have to ride with the auditors in the company vehicle, in order to preserve the integrity of the audit. Levin objected that he had a 5:30 p.m. doctor’s appointment near his home and that he did not want to have to make the 45 minute round trip drive from the Calabasas office to his home more than once that day. Cerame told him not to worry and that he would drive Levin to his doctor’s appointment, if necessary. When Levin continued to object, Cerame ordered him to get into the auditors’ vehicle and threatened Levin that he would be terminated “on the spot” and charged with felony embezzlement if he did not comply. Focarino, Ryan, Ketchum, and another Solutions employee named Rolando Nuestro were standing approximately 10 feet away at the time this threat was made. Levin felt frightened and intimidated and complied with Cerame’s directive. Focarino and Ryan entered the company vehicle with Levin, and Cerame drove to Levin’s home. Ketchum and Nuestro followed them in a Canon van.
En route to Levin’s home, Levin suffered an anxiety attack. He told Cerame that he felt ill and asked Cerame to stop the car. Cerame pulled over to the side of the road and Levin stepped outside momentarily for some air. When Levin said he was feeling better, they proceeded on to his home.
When the auditors arrived at Levin’s home, Levin told them that the keypad that controlled his garage door did not work and that he would have to open the garage door from inside the house. Levin proceeded to the front door of the home, with Cerame a few steps behind him. After Levin opened the front door, Cerame placed his right foot across the door jamb and positioned himself across the doorway, using his arm and body to brace the door open and prevent Levin from closing the door. Cerame told Levin that the auditors would have to accompany him into the home in order to preserve the integrity of the audit. When Levin objected and told Cerame that he did not want anyone entering his home, Cerame threatened Levin with termination of his employment and criminal prosecution. Focarino then approached and told Levin that the auditors needed to see what he was doing in the home. He offered to stand in the doorway and watch Levin walk through the home to open the garage door, but Levin explained that Focarino would be unable to see the garage door from that location. Cerame then shoved Levin aside, said “I need to see this,” and walked into Levin’s home. Focarino followed Cerame inside. Levin asked both men to get out of his home and said that he would call 911 if they did not do so. Focarino then stepped outside and instructed Cerame to do the same. Cerame again stationed himself at the front door, blocking the doorway with his arm and body to prevent Levin from closing the door.
Cerame eventually allowed Levin to enter the home alone and to close the front door behind him, after Levin provided assurances that he would open the garage door immediately. When Levin opened the garage door, Focarino, Cerame, and Ryan entered the garage. Levin asked the men to exit the garage and said that he would hand them the Canon inventory they had come to retrieve. The men disregarded Levin’s request, and Cerame proceeded to open the doors of several cabinets located inside the garage. Ryan instructed Ketchum to remove the Canon inventory from Levin’s garage, and assisted Ketchum and the others in loading the materials into the Canon van. Levin became increasingly upset as the auditors ignored his requests to leave the premises, and he eventually called 911.
While the parties were waiting for the police to arrive, Cerame told Levin that the auditors needed to search his home. When Levin refused, Cerame again threatened him with termination of his employment and criminal embezzlement charges. Levin believed he had no choice but to submit to Cerame’s demands, but he insisted that Ketchum, the only member of the audit team that Levin knew personally, be the only one allowed inside the home. Ketchum entered the home with Levin and searched each room, including the bedrooms of Levin’s children, opening closet doors as he did so. No Canon parts or inventory were found inside Levin’s home.
Before the police arrived, Cerame approached Levin and told him the auditors had collected enough evidence to terminate Levin’s employment and to file criminal embezzlement charges against him. Cerame urged Levin to “come clean” in order to avoid criminal prosecution. Levin refused. Later that day, when Levin returned to Solutions’ offices to retrieve his car, Cerame again approached Levin, warned him this was his “last chance” to avoid criminal prosecution, and urged Levin to confess to stealing Canon parts and inventory. When Levin insisted that he had done nothing wrong, Cerame cursed at him and threatened to “clean” him up.
On March 19, 2008, Coleman telephoned Levin at his home and informed him that his employment was being terminated. Coleman then told Levin that in order to avoid criminal prosecution, Levin had to confess to the alleged theft. Levin refused to do so, insisting he had done nothing wrong.
Subsequent efforts to bring criminal charges against Levin were unsuccessful.
PROCEDURAL HISTORY
On June 13, 2008, Levin filed a complaint against Solutions, CUSA, Focarino, Ketchum, and Cerame alleging causes of action for false imprisonment, invasion of privacy, defamation, wrongful termination in violation of public policy, violation of Civil Code section 52.1, intentional interference with prospective economic advantage, and intentional and negligent infliction of emotional distress. Solutions cross-complained against Levin for conversion, tortious and negligent interference with contractual relations, tortious and negligent interference with prospective economic advantage, breach of contract, fraud, constructive fraud, and violation of Labor Code sections 2854, 2856, 2858, 2860, 2861, 2863, and 2865.
The case proceeded to an eight-day jury trial. During the course of the trial, counsel stipulated to the special verdict form that was submitted to the jury. The jury first indicated it had reached a verdict on June 16, 2009. The trial court assembled the jury in court, personally reviewed the verdict form and had the clerk read it in open court. After the verdict had been read aloud, the trial court realized that the jury had failed to answer several questions on the special verdict form. The trial court sent the jury back to deliberate, with instructions to complete the verdict form.
The following day, the jury submitted questions concerning the amount of attorney fees Levin had incurred, and Solutions’ and CUSA’s net profits. The trial court instructed the jury not to consider or include attorney fees or expenses as part of any award. The trial court further instructed that there had been no evidence of profits and that the jury should follow the instructions the court had provided on damages.
Later that same day, the jury again indicated it had reached a verdict. The trial court reviewed the verdict and again had the clerk read the verdict in open court. The jury found that Focarino and Ketchum did not engage in any of the alleged tortious conduct, but found Cerame, Solutions, and CUSA liable for wrongful imprisonment, invasion of privacy, and intentional infliction of emotional distress.
The jury awarded Levin $7,235 in damages on the false imprisonment claim, which consisted of $2,235 in medical expenses, $2,500 in past mental suffering, and $2,500 in future mental suffering. The jury allocated 60 percent of those damages to Cerame and 20 percent each to CUSA and Solutions. The jury awarded $7,235 in damages to Levin on the invasion of privacy claim, consisting of $2,235 in medical expenses, $2,500 in past mental suffering, and $2,500 in future mental suffering, and allocated 40 percent of those damages to Cerame and 30 percent to each of Solutions and CUSA. On the intentional infliction of emotional distress claim, the jury awarded Levin $100,000 for past mental suffering and $100,000 for future mental suffering, and allocated those damages 25 percent to Solutions and 75 percent to CUSA.
With regard to Solutions’ cross-claims, the jury found in Solutions’ favor on its breach of contract and Labor Code 2860 causes of action, and awarded Solutions damages of $1,840 on those claims. The jury found in Levin’s favor on Solutions’ remaining claims.
Judgment was entered on June 22, 2009. On July 7, 2009, CUSA and Solutions filed a motion for JNOV and a motion for a new trial, both of which were denied by the trial court. This appeal followed.
THE PARTIES’ CONTENTIONS
1. Defendants contend they cannot be held liable on any of the causes of action because their liability is premised solely on the doctrine of respondeat superior and the jury exonerated Solutions’ employees Focarino and Ketchum from all liability and specifically found that Cerame was not acting on behalf of Solutions or CUSA while engaging in the tortious conduct.
2. Defendants claim the evidence was insufficient to support the jury’s verdict and award on each of Levin’s causes of action.
3. Defendants contend the damages award against them for intentional infliction of emotional distress cannot exceed those assessed against Cerame because, under the doctrine of respondeat superior, the award against a principal may not exceed an award against its agent.
4. Defendants contend the damages award for intentional infliction of emotional distress was an improper double recovery because Levin was compensated for mental distress on his wrongful imprisonment and invasion of privacy claims. Defendants further contend the damages award for intentional infliction of emotional distress was an improper attempt by the jury to award Levin attorney fees and/or punitive damages.
5. Defendants claim the exclusive remedy for Levin’s intentional infliction of emotional distress claim was under the Workers’ Compensation Act.
6. Levin contends defendants’ appeal is frivolous. In a motion filed in this appeal, he seeks sanctions in the amount of $20,000 against them.
DISCUSSION
I. Standard of Review
The trial court’s power to grant a judgment notwithstanding the verdict is identical to its power to grant a directed verdict. (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 877.) “‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.’” (Id. at p. 878.) Where the motion for judgment notwithstanding the verdict raises a legal issue, we review the trial court’s ruling under a de novo standard of review. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)
We review the trial court’s ruling on a motion for new trial for abuse of discretion. (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1800.)
II. Respondeat Superior
A. Applicable Law
“Under the common law doctrine of respondeat superior, a principal or employer is vicariously liable for the acts of an agent or employee committed in the course of employment.” (Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1421, fn. omitted; Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 745-746.) The nexus that is required for finding a tortious act was committed within the course and scope of employment for the purpose of imposing respondeat superior liability is “that the tort be engendered by or arise from the work.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298 (Lisa M.).) “[T]he tortious occurrence must be ‘a generally foreseeable consequence of the [employer’s] activity’ [which] ‘means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.’ [Citations.]” (Id. at p. 299.)
The determination of whether an employee’s acts are within the course and scope of employment is generally a question of fact, but the issue may be decided as a matter of law if “‘“the facts are undisputed and no conflicting inferences are possible.”’ [Citation.]” (Lisa M., supra, 12 Cal.4th at p. 299.)
B. Vicarious Liability Based on Cerame’s Conduct
Defendants contend there is no basis for holding them vicariously liable under the doctrine of respondeat superior because the jury exonerated Focarino and Ketchum from all liability and because defendants cannot be held liable for Cerame’s tortious acts. They argue that the verdict must be overturned because the jury specifically found, in its response to question 20 of the special verdict form, that Cerame was not “acting on behalf of” CUSA or Solutions while engaging in the tortious conduct. A closer examination of the special verdict form reveals no inconsistency that would preclude imposing vicarious liability on defendants for compensatory damages caused by Cerame’s tortious acts.
CUSA also claims it cannot be held vicariously liable for Cerame’s conduct because there was no evidence of an employment or agency relationship between it and Cerame. As we discuss, there was substantial evidence of an agency relationship between CUSA and Cerame.
1. Alleged Inconsistency in the Special Verdict Form
Questions 1 through 26 of the special verdict form addressed defendants’ liability to Levin for compensatory damages. Questions 1 through 5 addressed liability and compensatory damages for wrongful imprisonment. Questions 6 through 11 addressed liability and compensatory damages for invasion of privacy. Questions 12 through 17 addressed liability and compensatory damages for intentional infliction of emotional distress. Question 17 instructed the jury to proceed to question 18 if they found any of the defendants liable for any of these torts. Because the jury found Cerame, Solutions, and CUSA liable for wrongful imprisonment, invasion of privacy, and intentional infliction of emotional distress and awarded Levin compensatory damages for these claims, they followed the instructions to proceed to question 18.
Questions 18 through 23 addressed Levin’s claim for punitive damages. To recover such damages against an individual defendant, Levin had to prove “by clear and convincing evidence” that the defendant acted with “oppression, fraud, or malice.” (Civ. Code, §3294, subd. (a).) To recover punitive damages against a corporate defendant, Levin had to prove fraud, oppression or malice on the part of “an officer, director, or managing agent of the corporation,” acting on behalf of the corporation. (Civ. Code, § 3294, subd. (b)); see also CACI No. 3948.) Unlike compensatory damages, for which a corporation may be liable as the result of an employee’s tort under the doctrine of respondeat superior, punitive damages may be imposed on a corporation “only if the corporation itself, acting through those who managed its general affairs, engaged in the requisite oppression, fraud, or malice.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 569.)
Question 18 of the special verdict form asked the jury to determine whether Levin had proved “by clear and convincing evidence” that Cerame acted “with malice, oppression, or fraud.” The jury answered “no” to question 18, as follows:
“Question No. 18:
“Did Gregg Levin prove by clear and convincing evidence that Michael Cerame engaged in the conduct identified above [wrongful imprisonment, invasion of privacy, and intentional infliction of emotional distress] with malice oppression, or fraud?
“____ Yes __X__ No
“If your answer to question 18 is yes, then answer question 19. If you answered no, then proceed to question 21.”
After answering “no” to question number 18, the jury disregarded the instructions to “proceed to question 21” and instead answered “no” to question numbers 19 and 20 as follows:
“Question No. 19:
“Was Michael Cerame an officer, director, or managing agent of Canon Business Solutions, Inc. or Canon U.S.A. Inc.?
“Canon Business Solutions, Inc. ____ Yes __X__ No
“Canon, U.S.A., Inc. ____ Yes __X__ No
[¶]... [¶]
“Question No. 20:
“Was Michael Cerame acting on behalf of Canon Business Solutions, Inc. or Canon U.S.A., Inc. in the conduct identified above?
“Canon Business Solutions, Inc. ____ Yes __X__ No
“Canon U.S.A., Inc. ____ Yes __X__ No
Neither the trial court nor counsel noticed this inconsistency in the special verdict, even after the jury was polled with respect to each question on the special verdict form. Neither party objected to the verdict or asked the trial court to instruct the jury to clarify or correct the verdict before the jury was discharged.
The jury’s failure to follow the instructions set forth in question 18 of the special verdict form did not invalidate the verdict. The jury’s negative responses to questions 18, 19, and 20 did not conflict with their answers to previous questions that addressed liability and compensatory damages for defendants’ tortious conduct. That the jury found, for purposes of determining Solutions’ and CUSA’s liability for punitive damages, that Cerame was not “acting on behalf of” either corporation as an officer, director, or managing agent, did not preclude them from finding Solutions and CUSA liable for compensatory damages as the result of Cerame’s tortious conduct under the doctrine of respondeat superior. (See White v. Ultramar, Inc., supra, 21 Cal.4th at pp. 571-572 [distinguishing between respondeat superior liability from corporate liability for punitive damages].)
Defendants raised no objection to the special verdict form, and they do not claim that the verdict form is ambiguous.
2. Substantial Evidence of Agency Relationship with CUSA
Defendants concede there was sufficient evidence to establish an agency relationship between Cerame and Solutions, but contend there was no evidence of such a relationship between Cerame and CUSA. The record contains substantial evidence to the contrary.
Cerame testified that he was “assigned by CUSA” to audit its subsidiary, Solutions. He further testified that after he alerted CUSA’s management to a potential flaw in Solutions’ automated inventory tracking system, CUSA’s management instructed him to accompany a CUSA internal audit team assigned to audit Solutions’ field technicians. Cerame said that he spent much of the day on March 17, 2008, with Weisberg. Cerame, Weisberg, and the other members of the CUSA audit team discussed with Focarino and Ketchum the parameters of the audit and how it was to be conducted, including taking steps to ensure that Levin was not left alone at any time during the course of the audit. When Levin first met the CUSA audit team, Cerame introduced himself as a Canon internal auditor. There was substantial evidence of an agency relationship between CUSA and Cerame.
C. Vicarious Liability Based on the Conduct of Other Employees
There is also substantial evidence that defendants were vicariously liable based on the conduct of other CUSA and Solutions employees who were not named as defendants in this action. There was evidence that Weisberg, together with another CUSA vice president named Prabhat Kumar (Kumar), made the decision to conduct unannounced audits of Solutions’ field technicians. Weisberg and the other members of CUSA’s internal audit team, including Ryan, advised Focarino about the parameters of the audit and how it would be conducted. Ryan was present during the audit of Levin’s car inventory and the inventory stored in Levin’s garage. Ryan directed Ketchum to remove the inventory from Levin’s garage, and he assisted Ketchum in doing so. Ketchum testified that he believed Ryan was in charge of certain aspects of the audit.
Coleman was informed of the theft allegations against Levin, but never allowed Levin the opportunity to explain his actions, in violation of Solutions’ human resources policy manual. Levin testified that Coleman threatened him with criminal prosecution in an effort to coerce him into confessing to stealing Solutions’ property. Substantial evidence supports the verdict against CUSA and Solutions based on the conduct of Weisberg, Ryan, and Coleman.
D. Levin’s Dismissal of the Doe Defendants Does Not Preclude Liability Based on the Conduct of Uncharged Employees
Defendants argue that Levin’s dismissal of the Doe defendants precludes defendants from being held vicariously liable for the conduct of Weisberg, Ryan, Coleman, and any others who were not named as defendants in the action. Defendants cite no authority to support this argument because the law is to the contrary. “When proceeding against a tortfeasor’s employer under a theory of respondeat superior,... the plaintiff may proceed solely against the employer, and the injury-causing employee need not be named at all [citations], or may be dismissed while the action is pending as long as the dismissal does not reflect on the merits [citation].” (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 77; Lathrop v. HealthCare Partners Medical Group, supra, 114 Cal.App.4th at p. 1423 [employee and employer need not be joined in same but can be sued separately and employer held vicariously liable without a judgment against the employee personally].)
Even though Weisberg, Ryan, and Coleman were not named as defendants in the action, their conduct could be a basis for holding CUSA and Solutions liable under the theory of respondeat superior. (Boyer v. Jensen, supra, 129 Cal.App.4th at p. 77.) Levin’s dismissal of the Doe defendants from the case did not preclude liability from being imposed against defendants on that basis.
Although Weisberg, Ryan, and Coleman need not have been joined as defendants for CUSA and Solutions to be held vicariously liable for their conduct, there is some question as to whether they had to be specifically identified at trial as employees whose conduct Levin sought to impute to CUSA and Solutions. The First Appellate District has suggested that such specific identification is necessary for respondeat superior liability to be imposed.
In Munoz v. City of Union City (2004) 120 Cal.App.4th 1077 (Munoz), the relatives of a woman shot and killed by a police officer brought a wrongful death action against the officer and the city. The plaintiffs sued the city both directly and under the doctrine of respondeat superior, premised solely on the conduct of a single offending officer. (Id. at p. 1112.) The jury returned a special verdict finding the officer and the city liable for negligence and battery and apportioned fault 50 percent to the officer, 45 percent to the city, and 5 percent to the victim. (Id. at p. 1083.) The city conceded that it was liable for the officer’s portion of the damage award under the doctrine of respondeat superior, but challenged the verdict against it premised on a theory of direct negligence. (Id. at p. 1111.)
The First Appellate District reversed the direct liability portion of the verdict against the city, on the ground that the California Tort Claims Act precluded holding a public entity directly liable absent a statutory basis imposing such liability. (Munoz, supra, 120 Cal.App.4th at p. 1113.) The plaintiffs then sought to argue on appeal that the direct negligence portion of the jury’s verdict against the city could be upheld on vicarious liability principles. The First Appellate District rejected this argument, noting that throughout the trial, the plaintiffs “painstakingly explained to the jury the difference between the direct and vicarious liability claims being pursued against” the city. (Id. at p. 1112.) In closing argument, the jury instructions, and the special verdict form, the jury was told repeatedly that the offending officer’s conduct was the basis for the plaintiff’s vicarious liability claim against the city. (Id. at p. 1113.) The court stated: “[U]nless the employee is identified, the trier of fact will not be able to determine if the elements needed to assert vicarious liability have been proved. (CACI No. 3701) (2004 ed.) and Directions for Use.) Thus, the doctrine [of respondeat superior] clearly contemplates that the negligent employee whose conduct is sought to be attributed to the employer at least be specifically identified, if not joined as a defendant.” (Ibid.)
In this case, the jury was instructed on the elements of vicarious liability with regard to the conduct of Cerame, Focarino, and Ketchum, but not with regard to Weisberg, Ryan, and Coleman. The jury did hear evidence, however, that Weisberg was a CUSA vice president and the manager of CUSA’s internal audit department, that Ryan was a CUSA auditor, and that CUSA’s internal audit team set the parameters of Levin’s audit and directed the audit. The jury also heard testimony that Coleman, Solutions’ director of human resources, sought to coerce Levin into confessing to theft allegations by threatening him with criminal arrest and prosecution. During closing argument, Levin’s counsel emphasized that Weisberg and Ryan were CUSA employees, and then summarized the evidence concerning their participation in the tortious conduct. These factors are sufficient to distinguish the instant case from Munoz.
III. Direct Liability of CUSA
Vicarious liability under the doctrine of respondeat superior is not the only basis for imposing liability on a principal for the tortious acts of an agent or employee. Liability may also result from the principal’s direction or authorization to perform a tortious act. Unlike respondeat superior, where “[t]he liability of an innocent, nonparticipating principal... is based upon the wrongful conduct of the agent; the principal cannot be liable unless the agent is liable” (3 Witkin, Summary of Cal. Law (10th ed. 2009) Agency & Employment, § 167), direct liability holds a defendant accountable for its own tortious conduct. A principal is directly liable when it is an active tortfeasor and its employee or agent acts under its direction.
A corporate defendant may therefore be held liable for an intentional tort not only under the doctrine of respondeat superior, but also as a joint participant in the wrongful acts when its employees act under the general direction of their superiors. (McInerney v. United Railroads of San Francisco (1920) 50 Cal.App. 538, 550 [holding corporation liable for wrongful imprisonment under theories of direct liability and respondeat superior]; see also Jensen v. Southern Pacific Co. (1954) 129 Cal.App.2d 67, 70, disapproved on other grounds in Alarid v. Vanier (1958) 50 Cal.2d 617, 624 [corporation directly liable for injuries resulting from employee’s negligent operation of a train at an excessive speed when the train was being operated on a schedule and rate of speed prescribed by the corporation]; 10 Fletcher Cyclopedia of the Law of Corporations (2009) Joint and Several Liability of Corporation and Agent, § 4898 [when a corporate officer or agent directed or actively participated in a particular act, the liability of the corporation and its agent or servant is joint as well as several].)
There is substantial evidence to support the verdict against CUSA based on its direction or authorization of the tortious conduct. Focarino testified that he met with CUSA’s internal audit team the week before Levin’s audit, and that the auditors advised him as to how the audit would be conducted. Weisberg testified that she and Kumar made the decision to conduct a surprise audit of certain Solutions field technicians. Weisberg, Cerame, and Ryan met with Focarino and Ketchum on the morning of the audit and discussed the parameters of the audit and how it was to be conducted, including taking steps to ensure that Levin did not drive his own car to his home and that Levin was not left alone during the course of the audit. Ryan was present when Cerame ordered Levin to ride in the company vehicle, and Ryan accompanied Levin, Cerame, and Focarino in that vehicle during the drive to Levin’s home. Ryan was present while Cerame and Focarino attempted to gain access to Levin’s home. Ryan directed Ketchum to remove the inventory from Levin’s garage, and assisted Ketchum in doing so. Ketchum testified that he believed Ryan was in charge of certain aspects of the audit. Substantial evidence supports the verdict against CUSA based on its own tortious conduct.
IV. Sufficiency of the Evidence
Defendants challenge the sufficiency of the evidence to support the jury’s verdict on each of Levin’s causes of action. Substantial evidence supports the verdict.
A. False Imprisonment
The elements of a claim for false imprisonment are (1) the defendant intentionally and unlawfully exercised force or the express or implied threat of force, threat of arrest, menace, fraud or deceit, or unreasonable duress, to restrain, detain, or confine the plaintiff; (2) the restraint, detention, or confinement compelled the plaintiff to stay or go somewhere for some appreciable time, however short; (3) the plaintiff did not consent; and (4) the restraint, detention, or confinement caused the plaintiff to suffer injury, damage, loss, or harm. (CACI No. 1400; Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716.)
The evidence presented at trial included Levin’s testimony that he was compelled to ride with Cerame, Ryan, and Focarino in the company vehicle, and that he did so against his will because he was threatened with criminal prosecution and termination of his employment. While confined in the car, Levin experienced panic and emotional distress to the point of physical illness. Substantial evidence supports the false imprisonment verdict.
B. Invasion of Privacy
The elements of a claim for invasion of privacy are (1) the plaintiff had a reasonable expectation of privacy; (2) the defendant intentionally intruded; (3) the intrusion would be highly offensive to a reasonable person; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the harm. (CACI No. 1800.)
The evidence presented included Levin’s testimony that Cerame and Focarino forced their way into his home, over Levin’s objection. Cerame, Focarino, Ryan, and Ketchum entered Levin’s garage, opened cabinet doors, and went through Levin’s personal effects, over Levin’s objections and repeated requests that they leave the premises. Levin was compelled, under threat of termination of his employment and criminal prosecution, to allow Ketchum to search his home. Levin said that he felt humiliated, violated, and distressed by these intrusions. Substantial evidence supports the jury’s verdict for invasion of privacy.
C. Intentional Infliction of Emotional Distress
The elements of a cause of action for intentional infliction of emotional distress are: “‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. [Citations.]... Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citations.]’” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209, quoting Cervantez v. J. C. Penny Co. (1979) 24 Cal.3d 579, 593.)
The evidence showed that CUSA’s internal audit team discussed in detail the parameters of Levin’s audit and how it would be conducted, including steps that would be taken to ensure that Levin rode with the auditors in the company vehicle and that he was never left alone during the audit. Levin was compelled to ride in a company vehicle, escorted by Cerame and four other employees. While confined in the company vehicle, Levin was distressed to the point of physical illness. His distress increased after the auditors intruded into this home and searched his garage, and when they disregarded his requests to leave the premises, he telephoned the police for assistance. Levin was accused of theft and threatened repeatedly with criminal prosecution and termination of his employment. When Levin’s employment was terminated, defendants again threatened him with criminal prosecution in an effort to coerce him to confess to stealing company property. Substantial evidence supports the verdict for intentional infliction of emotional distress.
V. Damages for Intentional Infliction of Emotional Distress
A. Damages In Excess of Cerame’s Liability
Defendants contend the $150,000 in damages awarded against CUSA and the $50,000 awarded against Solutions for intentional infliction of emotional distress must be reduced to zero because that was the amount of damages awarded against Cerame for this cause of action. Defendants argue that any damages awarded against them cannot exceed those awarded against Cerame because under the doctrine of respondeat superior, their liability is wholly derivative and based solely on Cerame’s conduct.
Under the doctrine of respondeat superior, a principal cannot be held vicariously liable for an amount of compensatory damages that exceeds the amount for which the agent is liable. (Lathrop v. HealthCare Partners Medical Group, supra, 114 Cal.App.4th at p. 1423.) The jury did not impose liability on appellants for intentional infliction of emotional distress based solely on Cerame’s conduct, however, as is evidenced by their award of zero damages against Cerame for this cause of action. As discussed previously, there was substantial evidence to hold CUSA directly liable for directing or authorizing the tortious acts, and to hold both defendants vicariously liable for the conduct of Weisberg, Ryan, and Coleman.
Defendants argue that the jury could not have awarded damages based on the tortious conduct of unnamed employees such as Weisberg, Ryan, and Coleman because the special verdict form gave the jury the opportunity to identify “Others” to whom a percentage share of Levin’s damages could be allocated and the jury declined to do so. The special verdict form did not ask the jury to identify any additional individuals or entities that might be liable for Levin’s damages, but simply to allocate damages among the defendants and “Others.” The jury’s decision to allocate no damages to such “Others” did not preclude them from allocating 100 percent of the damages to defendants.
B. Propriety of Award
Defendants contend the jury’s award of damages for intentional infliction of emotional distress should be set aside because it was an impermissible double recovery for mental suffering for which Levin was compensated on his false imprisonment and invasion of privacy claims. Defendants further contend the award was an improper attempt by the jury to award Levin attorney fees, expenses, or punitive damages.
“The general rule of compensatory damages bars double recovery for the same wrong.” (Krusiv. Bear, Stearns, & Co. (1983) 144 Cal.App.3d 664, 673.) However, “where separate items of compensable damage are shown by distinct and independent evidence, the plaintiff is entitled to recover the entire amount of his damages, whether that amount is expressed by the jury in a single verdict or multiple verdicts referring to different claims or legal theories. [Citation.]” (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1159.)
“[T]here is no fixed or absolute standard by which to compute the monetary value of emotional distress....” (Merlo v. Standard Life & Accident Insurance Co. (1976) 59 Cal.App.3d 5, 17.) “‘“The determination of damages is primarily a factual matter on which the inevitable wide differences of opinion do not call for the intervention of appellate courts. [Citation.] An appellate court, in reviewing the amount of damages, must determine every conflict in the evidence in respondent’s favor and give him the benefit of every reasonable inference. [Citation.] An appellate court may not interfere with an award unless ‘the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’”’ [Citation.]” (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1011-1012.)
Substantial evidence supports the jury’s determination that the mental injuries Levin suffered as the result of the false imprisonment and invasion of privacy were different than those he sustained as the result of defendants’ intentional infliction of emotional distress. The acts pertaining to the false imprisonment and invasion of privacy claims occurred during the course of a few hours on a single day -- March 17, 2008. Both Levin and his experts testified about the anxiety he experienced while he was unlawfully confined in the company vehicle, and the sense of outrage and personal violation he felt during the intrusion into his home. The acts giving rise to the intentional infliction of emotional distress claim occurred after the false imprisonment and invasion of privacy and included the accusations of theft, repeated threats of arrest and criminal prosecution, and attempts to coerce Levin into making a false confession. Levin and his experts testified that the repeated threats of arrest and criminal prosecution, which continued after the false imprisonment and invasion of privacy, caused him severe distress, depression, nightmares, and sleep disturbances.
The jury evidently distinguished between the injuries Levin suffered as the result of events that occurred during his confinement and the intrusion into his home on March 17, 2008, and those that occurred later. The damages award for intentional infliction of emotional distress does not contravene the rule against double recovery of damages for the same harm. Because substantial evidence supports both the basis and amount of that award, it will not be disturbed on appeal. (Weller v. American Broadcasting Companies, Inc., supra, 232 Cal.App.3d at pp. 1011-1012.)
C. Workers’ Compensation as Exclusive Remedy
Appellants contend that Levin’s claim for intentional infliction of emotional distress was subject to the exclusivity provisions of the Workers’ Compensation Act (Labor Code, § 3600 et seq.)
“Workers’ compensation provides the exclusive remedy when misconduct attributed to the employer involves actions that are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations involving grievances.” (2 Witkin, Summary of Cal. Law (10th ed. 2009) Workers Compensation, § 56, p. 622.) “[A]n employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) Where the conduct causing such injury exceeds the normal risks of the employment relationship, however, the injured employee may pursue civil remedies against the employer outside of the workers’ compensation system. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 756.)
“The cases that have permitted recovery in tort for intentional misconduct causing disability have involved conduct of an employer having a ‘questionable’ relationship to the employment, an injury which did not occur while the employee was performing service incidental to the employment and which would not be viewed as a risk of employment, or conduct where the employer... stepped out of [its] proper role[]. [Citations.]” (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 161.) The Supreme Court has acknowledged that civil remedies may be available to a plaintiff seeking redress for the employer for “a campaign of outrageous and harassing conduct, which included falsely claiming that plaintiff embezzled money” because such conduct exceeded the normal risks of the employment relationship. (Livitsanos v. Superior Court, supra, 2 Cal.4th at p. 756.) Such circumstances were present here. The jury found defendants to have engaged in “outrageous” conduct that was a substantial factor in causing Levin severe emotional distress. Substantial evidence supports that finding. There was evidence that defendants launched a campaign of intimidation and harassment against Levin that included forcing him to ride in a company vehicle, intruding into and searching his home, repeatedly threatening him with termination of his employment, arrest, and criminal prosecution, and attempting to coerce him into confessing to theft and embezzlement. Levin’s injuries fell outside the scope of the normal risks of the employment relationship, and he was entitled to pursue civil remedies against defendants outside of the workers’ compensation system. (Ibid.)
VI. Motion for New Trial
Defendants claim they are entitled to a new trial on damages with respect to their claims for breach of contract and violation of Labor Code section 2860. They contend the trial court erroneously excluded the testimony of Myron Berg (Berg), a witness who allegedly purchased Canon products from Levin between 1987 and 1991, thereby prejudicing their cross-claims for damages. Defendants further contend they are entitled to a new trial based on inadequate damages.
A. Alleged Evidentiary Error
Levin filed a motion in limine to exclude the testimony of Berg under Evidence Code sections 352 and 1101, on the ground that Berg’s testimony concerning events that occurred more than 18 years ago was only marginally relevant to defendants’ claims and was unduly prejudicial to Levin. The trial court granted the motion and precluded any testimony by Berg not based on his personal knowledge. When defendants sought to call Berg as a witness at trial, Levin’s counsel sought clarification from the trial court regarding its in limine ruling. After hearing argument from the parties, the trial court excluded Berg from testifying pursuant to Evidence Code section 352, on the ground that events that occurred 18 to 22 years ago were too remote in time and unduly prejudicial. We review the trial court’s decision to exclude such testimony under the abuse of discretion standard. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.)
The trial court could reasonably conclude that Berg’s testimony concerning events that occurred more than 18 years ago were too remote in time, and that the probative value of such evidence was substantially outweighed by the probability that its admission would cause confusion or undue prejudice on the part of the jury. (Phillips v. Phillips (1960) 181 Cal.App.2d 211, 214.) The record discloses no abuse of discretion.
B. Inadequacy of Damages
Code of Civil Procedure section 657 states that “[a] new trial shall not be granted upon... the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” An appellate court may not disturb a judgment on the ground of inadequacy of damages unless the amount of the award is supported by no substantial evidence in the record and the verdict is a clear abuse of the jury’s discretion. (Sherwood v. Rossini (1968) 264 Cal.App.2d 926, 931-932.)
The evidence presented concerning Solutions’ damages included Levin’s admission that he received $1,418 from Michael Marshall for copier repairs; Levin’s inventory of Canon parts contained between $1,000 to $3,400 more than what was reflected in Canon’s automated inventory tracking system; and testimony by Kirk Wood that Levin sold him between $2,500 and $3,000 in Canon toner between 2003 and 2004. Substantial evidence supports the jury’s award of $1,840 in damages on defendants’cross-claims. The trial court’s denial of the motion for a new trial was not abuse of discretion.
VII. Request for Sanctions
Levin’s motion for sanctions against defendants for filing a frivolous appeal is denied.
DISPOSITION
The judgment and orders are affirmed. Levin is awarded his costs on appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.